The Rise and Fall of Invasive ISP Surveillance by Paul Ohm of Colarado Law School

ISPs carry their users' conversations, secrets, relationships, acts, and omissions. Until the very recent past, they had left most of these alone because they had lacked the tools to spy invasively, but with recent advances in eavesdropping technology, they can now spy on people in unprecedented ways. This Article proposes an innovative new theory of communications privacy to help policymakers strike the proper balance between user privacy and ISP need. In the words of Abe Singer on the NetNeutrality list, "The article provides an excellent comprehensive view of the debate on ISP monitoring, privacy, how it relates to net neutrality, and presents legal theory for striking a proper balance in public policy."

ISPs carry their users' conversations, secrets, relationships, acts, and omissions. Until the very recent past, they had left most of these alone because they had lacked the tools to spy invasively, but with recent advances in eavesdropping technology, they can now spy on people in unprecedented ways. This Article proposes an innovative new theory of communications privacy to help policymakers strike the proper balance between user privacy and ISP need. In the words of Abe Singer on the NetNeutrality list, "The article provides an excellent comprehensive view of the debate on ISP monitoring, privacy, how it relates to net neutrality, and presents legal theory for striking a proper balance in public policy."

This paper can be downloaded without charge fromthe Social Science Research Network electronic libraryat:http://ssrn.com/abstract=

1261344

Electronic copy available at: http://ssrn.com/abstract=1261344

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BSTRACT

Nothing in society poses as grave a threat to privacy as the InternetService Provider (ISP). ISPs carry their users’ conversations, secrets,relationships, acts, and omissions. Until the very recent past, they had leftmost of these alone because they had lacked the tools to spy invasively, butwith recent advances in eavesdropping technology, they can now spy onpeople in unprecedented ways. Meanwhile, advertisers and copyrightowners have been tempting them to put their users’ secrets up for sale, and judging from a recent flurry of reports, ISPs are giving in to the temptationand experimenting with new forms of spying. This is only the leading edgeof a coming storm of unprecedented and invasive ISP surveillance.This Article refines earlier theories of communications privacy tohelp policymakers strike the proper balance between user privacy and ISPneed. We cannot simply ban aggressive monitoring, because ISPs havelegitimate reasons for scrutinizing communications on an Internet teemingwith threats. Applying this refined theory, policymakers will be able todistinguish between an ISP’s legitimate needs and mere desires.In addition, this Article injects privacy into the network neutralitydebate—a debate about who gets to control innovation on the Internet.Despite the thousands of pages that have already been written about thetopic, nobody has recognized that we already enjoy mandatory network neutrality in the form of expansive wiretapping laws. The recognition of thisidea will flip the status quo and reinvigorate a stagnant debate byintroducing privacy and personal autonomy into a discussion that has onlyever been about economics and innovation.